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Table of Contents    
REVIEW ARTICLE
Year : 2022  |  Volume : 70  |  Issue : 3  |  Page : 845-848

Medicolegal Priorities for a Neurosurgeon/Neurologist in the COVID Era


Department of Neurosurgery, Sree Chitra Tirunal Institute for Medical Sciences and Technology, Trivandrum, Kerala, India

Date of Submission22-Jun-2020
Date of Decision09-Sep-2020
Date of Acceptance15-Dec-2020
Date of Web Publication1-Jul-2022

Correspondence Address:
George C Vilanilam
Department of Neurosurgery, Sree Chitra Tirunal Institute for Medical Sciences and Technology, Trivandrum - 695 011, Kerala
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0028-3886.349678

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 » Abstract 


Vulnerable moments, panic, and uncertainties are the hallmarks of pandemic outbreaks. Medicolegal challenges add further injury to the public health chaos. Although containing the pandemic is of prime concern, medicolegal and ethical uncertainties further complicate ideal standards of medical care. Constraints in the provision of medical care, resource limitations, infectivity risks, burgeoning costs, and pandemic control laws, create extremely precarious medicolegal situations. Ethics and medical negligence laws may, at times, be trampled upon by the overwhelming urgencies of the pandemic. Hence, we attempt to review basic ethical and medicolegal principles that are put to test by pandemic urgencies. We aim to study these vulnerable medicolegal moments in neurosurgeons'/neurologists' clinical and research practices during the COVID-19 times from our own practice and contemporary literature on COVID practices, medicolegal sciences, and pandemic healthcare directives. We also review supportive measures and safeguards to brace these vulnerable moments effectively. We compile medicolegally sound and ideal practice parameters, including the basic principles for a restructured informed surgical consent ensuring a medicolegally and ethically sound practice. Several ethical and medicolegal exigencies are part of medical practice during a pandemic. Special care should be taken to avoid violations of medicolegal and ethical proprieties during the urgencies of medical care and research. Restructuring of contracts like the informed consent would also count as an ideal practice modification in a pandemic.


Keywords: COVID-19, ethics, medical negligence, medicolegal
Key Message: Neurologists and neurosurgeons need to be wary about the medicolegal and ethical rights of patients and research subjects during the urgencies of medical care during the COVID-19 pandemic. It is essential to uphold best standards of ethically and medicolegally appropriate practice, despite leniencies and urgencies imposed by the pandemic.


How to cite this article:
Vilanilam GC, Gohil J. Medicolegal Priorities for a Neurosurgeon/Neurologist in the COVID Era. Neurol India 2022;70:845-8

How to cite this URL:
Vilanilam GC, Gohil J. Medicolegal Priorities for a Neurosurgeon/Neurologist in the COVID Era. Neurol India [serial online] 2022 [cited 2022 Aug 17];70:845-8. Available from: https://www.neurologyindia.com/text.asp?2022/70/3/845/349678




In times of war, the laws fall silent

Cicero (Roman statesman and academician)

Overwhelming urgencies created by the COVID-19 pandemic have brought forth unique medicolegal vulnerabilities in the practice of medicine.[1] Neurosurgeons and neurologists, though not often in frontline COVID care, are nevertheless susceptible to these risks and liabilities.[2],[3] While providing emergency or elective care to non-COVID illnesses and also to COVID patients, several such medicolegally vulnerable situations are encountered. It is assumed that the law would be lenient towards a doctor during a pandemic. Nevertheless, it is impending that medical practitioners strive to maintain the highest medicolegal and ethical standards of care while rising above the call of duty.

As on September 20, 2020, 31,223,650 people, the world over, have been infected by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and 9,64,762 have succumbed to the illness. The pandemic has spread to 215 countries and continues to flare unabatedly.[4]

Even non-frontline specialists like neurologists and neurosurgeons are actively involved in indirect COVID care, which involves providing and prioritizing care for other illnesses and COVID related clinical research. Neurological manifestations of COVID-19, like stroke, seizures, encephalitis, and thromboembolic phenomena may further beckon the care of neurologists and neurosurgeons.[2],[3] Both hematogenous and direct transneuronal transmission with transgression across the blood brain barrier (BBB) have been proposed to be the mechanism of central nervous system (CNS) involvement by SARS-CoV-2. The systemic manifestations of COVID-19 are mediated by cytokine storms, thromboembolic phenomena and auto-immune responses making the CNS particularly vulnerable.[2],[3]

While executing clinical responsibilities in a pandemic scenario, several exigent circumstances may be created for the clinical practitioner. They are thereby at risk for medicolegal, moral, and ethical misjudgments and fallacious actions that could have future liabilities.[5],[6],[7],[8] Hence, we aim to study these vulnerable medicolegal moments in clinical and research practices during the COVID-19 times from our own practice and contemporary literature on COVID practices, medicolegal sciences and pandemic healthcare directives.


 » Perilious Medicolegal Situations and Consequences Top


Medical care provided in good faith during exigent circumstances should ideally be given special regard and appreciation. Nevertheless, these actions of noble intent are also governed by the principles of justice, equality, beneficence, utility, respect, liberty, solidarity, and reciprocity.[5],[6] The World Medical Association's Declaration of Helsinki (1964) advocates respect, beneficence, and justice as the cornerstones of medical ethics.[5],[6],[7],[8] Therefore, these well intended acts of medical care in a pandemic are not above medicolegal and ethical rights, which maybe often ignored citing the urgencies of a pandemic. Probable consequences of these actions may be unintentional, delayed, and unpredictable [Table 1]. Outlined below are some pandemic-specific, yet exceptional, medicolegally vulnerable clinical situations,
Table 1: Constraints posed by the pandemic and consequences in clinical care and research

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1. Clinical care constraints

Hospitals could serve as centers of cure or disease amplification in a pandemic.[1],[5] Enhanced infection control measures during a pandemic could constrain ergonomic efficiency and clinical work flow.

Examples

  1. Use of additional personal protective gear for neurosurgical operations, compromises surgical dexterity and workflow, thereby increasing the risk of adverse events. Clipping a cerebral aneurysm or performing an intracranial bypass wearing bulky personal protective equipment (PPE) with the surgeon's vision impaired by fogging eye-shields, is a daunting challenge.
  2. Limitations posed by COVID protocols impair bedside evaluation and clinical diagnosis. Thus, checking the gag reflex or the taste sensation, have become archaic and unsafe clinical skills in pandemic times. Clinical diagnostic efficacy is thereby greatly impaired.
  3. Delays in care due to additional COVID testing may compromise patient care outcomes.


2. Patient confidentiality breaches

During a public health crisis, health authorities (besides the treating team of doctors) are permitted access to patient records and treatment details, as mandated by pandemic laws. This may at times create a breach of patient medical record confidentiality, for the greater good of pandemic control.

3. Resource crunches

Limitations in availability of protective gear, test kits and health care personnel are common during pandemics. This further strains the quality of medical care and also challenges practices for judicious use of resources.[1],[5],[7]

4. Working outside fields of specialization

Severe shortages of general medical doctors and pulmonary specialists in COVID-19, times, may call for other specialists to provide these services. Neurosurgeons and neurologists in highly burdened clinical systems, may be given the added responsibility of manning intensive care units. This care, provided out of one's area of expertise with noble intent in a crisis, should not ideally attract the same medicolegal liabilities, as that for an expert.[5]

5. Enhanced positions for trainees and resident doctors

In a pandemic, medical students and resident doctors may often be needed for providing specialist clinical services, before completing their qualifying examinations.[5] Whether they should be as liable as more qualified experts in such an exigent situation, is a matter of speculation and ethical debate.

6. Telemedicine clinical care and its limitations

The lack of optimum bedside clinical evaluation in telemedicine consultations could lead to misdiagnosis and medicolegal liabilities. Clinical data confidentiality breaches are also additional concerns.[5],[6]

7. Pandemic times clinical research

Research subjects during a pandemic could be 'healthy' individuals, the infected patient, health care worker or those having COVID related/non-COVID ailments. Pandemic research should be focused on scientific validity, social value, risk-benefit ratios, fair and voluntary participation, equal moral respect for participants and cleared by independent fair reviews.[4],[7] Urgent fast track reviews may dilute stringent standards and scrutinies. Ideal standards for research consent may not often be met and many research subjects may be recruited based on passive implied consent. Thereby, careful scrutiny by ethical regulatory authorities may be needed despite the pandemic urgencies, both at the institutional and national levels.

8. Cost of medical care

Additional personal protective equipment, tests, and measures to protect the patient/health care worker from cross-infection, elevate the cost of care.[6] In developing nations the brunt of these costs are often borne by the patients and their families, rather than insurance systems or the state.


 » Realignment of Informed Consent Top


Informed consent for surgical interventions is based on shared autonomous decision making, with full information about the procedure, risks, and natural course of the disease. An informed refusal and future revocal of refusal also exist in the traditional consent process.[9],[10],[11]

However, in pandemic times, special situations like the risk of cross-infection, additional protocols, tests, enhanced costs, and constrained outcomes, need to find a mention in the informed consent process [Table 2].
Table 2: Key inclusions in COVID times informed consent for surgery/interventions

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 » Liabilities and Penalties Top


Laws to control pandemics could at times cross paths with medical malpractice laws, ethical and moral proprieties.[6],[8],[12],[13] The Epidemic Diseases Act of 1897 came in force due to the mass spread of the bubonic plague outbreak in Bombay. The Disaster Management Act, 2005 provides the state powers to implement measures to combat disasters like the current pandemic.[13] The Epidemic act is focused on enforcement of public health measures for epidemic control. Vis-à-vis, the standards of clinical care, a doctor's duties and a patient's rights are the cornerstones for medical negligence laws.

For establishing medical negligence, the pre-requisites are,[12]

  1. Existence of a duty to take care which is owed by the defendant to the complainant (example: doctor–patient)
  2. Failure to attain the standard of care prescribed by the law, thus committing a breach of duty
  3. Damage suffered by the complainant caused by this breach of duty and recognized by law.


In non-pandemic times and under ideal circumstances, a medical practitioner could attract any of the following liabilities in a deemed action of medical negligence,

  1. Tortious liability (Civil)––Failing in duty
  2. Contractual liability––Not honoring the executed “contract”(Example: Informed consent)
  3. Criminal liability––For gross criminal negligence and failures.


But, in a pandemic several urgencies and limitations restrict a doctor's efficiency and judgement. Thereby, medical negligence laws and ethical rights have to be viewed in the right context and penalties modified accordingly.

Section 188 of the Indian Penal Code (IPC) imposes punishment for disobeying an order promulgated by a public servant. This is often used to enforce the law in violations of the epidemic act. Section 269,270 of the IPC prescribes punishment for negligent actions which may spread the infection in the event of a disease. A doctor too could attract these liabilities unknowingly, during the provision of care in a pandemic. The treatment of other non COVID illnesses often take a backseat during the pandemic infection and such a scenario could create medicolegal liabilities for a neurologist/neurosurgeon (Example-A rescheduled semi-emergency brain tumor surgery during the pandemic, causing a neurological deterioration due to delay in care).

Acts of alleged medical negligence could incite liability under Indian Penal Code section 304 A (rash or negligent act causing death not amounting to culpable homicide),336,337,338 (rash or negligent act endangering life, safety of others) causing grievous hurt. Besides this, contract violation (informed consent is a contract) under the consumer protection act or civil rights and duties violations, could attract penalties in alleged acts of medical negligence. In the overwhelming pandemic urgencies and constrained circumstances, these laws of medical negligence need a realignment and rethought. They need to be interpreted and applied as fairly and humanely as possible, protecting both the 'care-giver' doctor's and the patient's rights.


 » Safeguards and Support Top


Clinicians like neurologists and neurosurgeons, stretch beyond the call of duty during a pandemic. But this may not be sufficient reason to lower the medicolegal bar of standards in clinical care and research.[6],[9] In such medicolegally vulnerable moments, the defensive plea of a doctor could be based on the following,

  1. Mitigatory circumstances:


  2. Pandemic urgencies, resources crunches, health risks and extreme hardships may mitigate the liabilities of a doctor charged with medical negligence in such a COVID-19 pandemic setting.

  3. Good Samaritan cover:


Care that is rendered to individuals to whom the doctor does not owe a duty is considered a 'Good Samaritan' service. This could be applicable to service rendered outside one's specialization or after retirement from active service.

Exigent circumstances or other health frailties may restrict a health care worker from offering optimum services in a pandemic. Hence, legal and administrative penalties must be tempered and balanced as per the pandemic exigencies.


 » Conclusions Top


In the heat of the pandemic control, medicolegal, ethical, and moral rights of patients may often get ignored. Though not often in frontline COVID care, neurologists and neurosurgeons may be part of several vulnerable medicolegally liable moments during these times. An awareness of basic principles of pandemic laws and medicolegal rights, in the light of the exigent circumstances would ensure highest standards of care from an ethical and medicolegal viewpoint. Realignment of the informed consent for surgery during pandemic times is also essential. When disaster management and epidemic laws cross paths with patients' rights and medicolegal proprieties, there cannot be any ethical or medicolegal compromise, despite the vulnerabilities.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
 » References Top

1.
Rosenbaum L. Facing Covid-19 in Italy — Ethics, Logistics, and Therapeutics on the Epidemic's Front Line. N Engl J Med 2020;382:1873-5.  Back to cited text no. 1
    
2.
Garg R. Spectrum of neurological manifestations in Covid-19: A review. Neurol India 2020;68:560.  Back to cited text no. 2
    
3.
Asadi-Pooya A, Simani L. Central nervous system manifestations of COVID-19: A systematic review. J Neurol Sci 2020;413:116832.  Back to cited text no. 3
    
4.
COVID-19 Coronavirus pandemic. Available from: https://www.worldometers.info/coronavirus. [Last accessed on 2020 Sep 21].  Back to cited text no. 4
    
5.
London A, Kimmelman J. Against pandemic research exceptionalism. Science (1979) 2020;368:476-477.  Back to cited text no. 5
    
6.
Coronavirus-Medicolegal update. Availablefrom: https://www.themdu.com/guidance-and-advice/latest-updates-and-advice/coronavirus-medico-legal-update. [Last accessed on 2020 Sep 21].  Back to cited text no. 6
    
7.
Ethics and COVID-19: Resource allocation and priority-setting. Available from: https://www.who.int/blueprint/priority-diseases/key-action/EthicsCOVID-19 resourceallocation.pdf. [Last accessed on 2020 Sep 21].  Back to cited text no. 7
    
8.
Ethical standards for research during public health emergencies: Distilling existing guidance to support COVID-19 R and D. Available from: https://www.who.int/blueprint/priority-diseases/key-action/liverecovery-save-of-ethical-standards-for-research-during-public-health-emergencies.pdf. [Last accessed on 2020 Sep 21].  Back to cited text no. 8
    
9.
Bernat J. Patient-centered informed consent in surgical practice. Arch Surg 2006;141:86.  Back to cited text no. 9
    
10.
Zhang Z, Yao Y, Zhou L. To err is human—medicolegal issues and safe care in neurosurgery. World Neurosurg 2014;81:244-6.  Back to cited text no. 10
    
11.
Vilanilam G, Sasidharan G. Informed refusal – A gray area in informed consent. Neurol India 2016;64:1393.  Back to cited text no. 11
[PUBMED]  [Full text]  
12.
Murthy K. Medical negligence and the law. Indian J Med Ethics 2007;4116-8.  Back to cited text no. 12
    
13.
Epidemic Act and Disaster Management Act enforced to combat COVID 19. Available from: https://rstv.nic.in/epidemic-act-disaster-management-act-enforced-combat-covid-19.html. [Last accessed on 2020 Sep 21].  Back to cited text no. 13
    



 
 
    Tables

  [Table 1], [Table 2]



 

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